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Sunday, November 27, 2011

The Takedown-Why the DMCA has failed

A few weeks ago I received an email from a friend letting me know that my music was being used on a website as background music. On the site there was no mention of my name, the titles of the song or my record company. My friend, being smart, figured that I would never have allowed my music to be used by the site, much less without any link back to me or my record label.

Since I had found other sites in the past using my music, or my writing, without my permission, I took this seriously. Sure enough, when I checked out the website in question, they had illegally embeded the song of mine. As I continued to poke around the site I discovered that they were using two additional songs of mine, all without permission, and the first song was used on two pages. So four cases of blatant copyright infringement.

Suddenly all of my work plans for that day came to a grinding halt as I now had to spend time searching online for who owned the website and who they used to host it. Then I had to start writing the email letter to notify the owner of the website that they were illegally using copyrighted material.

In the letter I included all the information I needed to let them know they were using my music illegally, including the fact that, under current law, the company that hosts the website would be required to take down the site unless my copyrighted material was removed, and further more, that if it was not removed in a timely manner I would have my attorney begin legal proceedings. I emailed the notice off. By the end of the day I received a reply from the owner of the site saying that my music had been removed.

How often do I have to have my music removed from someplace it is being used illegally? At least a couple times a month. How disruptive is this? Very.

From the beginning the Mission Statement of The Musical Disconnect has been to reveal what it is really like to be a working, independent musician today in the post MP3, iPod, file swapping world.

One of the changes has have occurred over the last decade that the average music fan is not aware of is that Indie musicians (along with major record label, film studios, writers, newspapers and publishers) have had to become their own online police force. Strange, since usually when a crime is committed most individuals and companies can call the police. But not independent musicians, writers, artists, and film makers. We have to wear our own badges. The law is actually set up this way. But how did this come to be and what’s involved?

Back in the 1998, while the country was running a nice budget surplus and the internet was mostly just used by universities, an addition to the copyright laws was passed in congress and signed into law by that master of triangulation, President Bill Clinton. (This is the guy who signed the laws deregulating the banks, which started the ball rolling to our current financial crisis, but I digress.)

The law, called the Digital Millennium Copyright Act (DMCA), was intended to prevent future abuse of Intellectual Property as it pertained to the internet, both the copying of works and the circumvention of technology to protect copyrighted works, called Digital Rights Management (DRM). It was an amendment of Title 17 of the United States Copyright code and part of two treaties of the World Intellectual Property Organization (WIPO). It also added protection to boat hull designs...

The part that became the big snafu for content creators was Title II, the Online Copyright Infringement Liability Limitation Act. What is this and what does it mean? Well, first a little back story.

At the time this was all coming into being the online service providers and ISPs were worried that if one of their users posted something that violated current copyright laws, say on a website hosted by an ISP, the owner of the copyrighted work could sue the ISP for it being there. The ISPs obviously didn’t want that to happen and made a pretty compelling case that there was no way they could know everything that users posted and be able to identify if it was illegally posted. So the DMCA [Online Copyright Infringement Liability Limitation Act] created a so-called safe harbor for these companies provided that they removed any infringing material once they were notified of an infringement by a copyright owner or the copyright holder’s representative. This was done through what is call a Takedown Notice, or just a Takedown.

Title II also offers a safe harbor if the user that posted the copyrighted material claims they were not acting illegally. In other words the hosting companies, at first the ISPs, later tech companies and individual online business that allow user content, had no liability in this from either side. They did, however, have to act on subpoenas that requested a user’s identity.

At the time this may have seemed reasonable. But then the web changed and companies started websites whose business model was based on the unlicensed use of copyrighted material. Srinandan Kasi, the general counsel for the Associated Press says that “Every business since the DMCA has been designed to take advantage of the DMCA, which means it’s about aggregating user-generated content and relying on the DMCA as a vehicle to take things down.”1 The best known, and one of the biggest, is YouTube.

Although YouTube promoted itself as a place for people to post videos of their family, pets and friends by saying “Broadcast Yourself”, those videos didn’t attract many views. What did attract the most viewers was unlicensed copies of TV programs, film clips, and music videos. In fact music videos, whether posted by the copyright owners or not, ruled the top ten most watched YouTube videos. Seven of the top ten YouTube videos were music videos. The list includes “two by Eminem and one each by Justin Bieber, Lady Gaga, Shakira, Pitbull, and Miley Cyrus.” 2 Under the safe harbor requirements of the DMCA , if any of these were posted by someone other than the copyright owner, YouTube did not have to remove this material until the copyright owner sent them a Takedown Notice. Even if they actually knew that the material was there illegally before they were notified.

YouTube claimed that it had no way of know that videos call “Friends” or “Poker Face” were not in fact posted by the content creators, the copyright owners, and even if they did know, they had no way of filtering that stuff out. Odd since they were very good at filtering out porn.

The truth of the matter is that, like many websites claiming ”safe harbor” under the DMCA, YouTube did in fact know that three quarters of the content posted on their site was there illegally. According to a lawsuit brought against YouTube by Viacom, YouTube cofounder Steve Chen and their product manager Maryrose Duntton both estimated that three-quarters or more of their views was driven by copyrighted material illegally posted by their users. Court documents in the case show Chen, in an email, stated that if YouTube removed all the copyrighted material from their site they would drop from “100,000 views a day to about 20,000 views or maybe even lower.” While Duntton wrote in an instant message that “probably 75-80% of our views come from copyrighted material”. 3

YouTube, in other emails brought to light by the Viacom case, chose to turn a “blind eye” when it came to removing videos they knew were posted illegally. There were internal discussions about ways to catch videos with titles like “The Simpsons” for closer review, or ways to let viewers flag a video that contained copyrighted work, but YouTube put that on a back burner. All they would do is remove videos on a one-by-one basis when they received a Takedown notice from the copyright owner. Until such time they would work under the premise that the copyright owner had posted it in the first place, even when it was obvious the owner had not. 4

YouTube used the content, all created by others, and which (at the time) they were not paying for, to drive viewers to their site, create a dominate market share and to generate ad revenue. As their emails show, the majority of the videos on YouTube were posted illegally and since the DMCA allowed them to ignore it until the copyright owner issued a Takedown, they left it up on the site because they knew they didn’t have anything worth watching if they removed it.

In the meantime YouTube got wildly popular, made lots of money off ad revenue and in less than two years sold the site to Google for 1.65 billion dollars. But none of this money went to the creators who produced the content that drove viewers to their site. The videos posted illegally.

All of this was made possible by Congress through the DMCA.

Viacom claims it spends $100,000 each month policing online infringement of its copyrights. 5. It goes without saying that Indie artists, writers, bloggers, Indie film makers and other content creators don’t have that kind of money.

And it is not just YouTube that has profited from a the DMCA. Another noted example is The Huffington Post, which posted blogs by individual without paying them and filled its site with ”news and videos aggregated from other sources”. The Huffington Post let those other sources foot the bill for researching those stories and producing those videos but then turned around and sold itself to yahoo.com for $315 billion. 6

There are other examples that are best left for another post. Some of them I try not to mention for fear that readers will snap their heads to the left and, like Doug the Dog spotting a squirrel, shout out ”Free Music!”. Because those two words seem to cause people to lose all sense of right and wrong. In truth the music is not really free. It is online illegally, without the creator’s permission, yet its being there costs the creator money. Money in lost sales income and money spent to have the material removed. All of this because congress, demonstrating their usual buffoonery, caved to the allure of the internet and forced individual musicians, writers, cartoonists, journalists and photographers to take up the law, instead of the DOJ and local law enforcement agencies, who’s job it is to enforce the law, and have the resources to do so.

Even the person the Clinton administration put in charge of steering the DMCA into law, Bruce Lehman, has expressed disappointment that, in the end, the DMCA did not protect the creators of copyrighted works. “Unfortunately, at least in some areas, our policies haven’t worked out too well,” Lehman admitted. “Our intention was not that the music business would be flat on its back and many of the other industries we wanted to promote would be in trouble.” At the time of its creation, the DMCA was seen the protector for the U.S. culture businesses of music, film, television and software, which account for about 6.5 percent of U.S. GDP, according to a report by the economist Stephen E. Siwek. 7

Rewind...So going back to the website that was using my music illegally, do I think that the owner of that site understood anything about the DMCA? Probably not. (My best guess is that he knew it was illegal but hoped I would never notice that he was stealing my music.) Did the DMCA make using my music without my permission more or less illegal? No, copyright infringement is still illegal. What the DMCA did do was force me to become my own police force and provide immunity to the site’s hosting service.

The owner of the site was never punished for stealing my content, which he used to set a mood for his customers, hoping they would spend money on his products. Obviously he believed having my music on the site helped his sales on some level, otherwise, why else use it? Did I receive any of the money that he made from selling his products on his site, which my music helped to promote? Not a dime.

But, hey, at least I get to spend (waste) an entire day, every few weeks, to deal with similar copyright infringements like this...

3. Ibid (It has not helped Viacom’s lawsuit that they had several employees post their content, but that does not negate the fact that that if you don’t own it the copyright, or have (written) permission or a license from the copyright owner it is illegal to post material online.

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The Musical Disconnect

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If you have not been here before a good place to start is our ongoing series,TMD 101, which can be found on the TMD TOC page, which organizes the articles by the order posted or subject.

The objective of The Musical Disconnect is to inform music fans, and musicians, what is happening in the music industry today, the profound changes that are occurring, and how a fan's actions can help, or hurt, the artists whose work they enjoy.

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